The Queen v Haughton[1997] QCA 281

COURT OF APPEAL

PINCUS JA

SHEPHERDSON J

WHITE J

CA No 219 of 1997

THE QUEEN

v.

TREVOR JON HAUGHTON Applicant

BRISBANE

DATE 06/08/97

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence pleaded guilty to assault occasioning bodily harm whilst armed with a dangerous weapon in the Supreme Court at Rockhampton on 8 May 1997.  He was sentenced to imprisonment for 15 months and seeks leave to appeal on the ground that, in all the circumstances, the sentence was manifestly excessive and that a lesser period of detention ought to have been imposed together with a lengthy period of probation.  The applicant was aged 25 years at the date of the offence on 4 October 1994 and had no previous criminal history. 

The circumstances of the offence are these.  The applicant resided in a caravan with his wife and child.  A dispute had occurred between them on the evening of 4 October.  He left and returned home about 11 o'clock affected by alcoholic liquor.  The relationship between the applicant and his wife had already commenced to deteriorate and his wife then decided to leave and to take the child with her that evening.

When he returned home the applicant began to abuse his wife.  She was in the process of taking her bags to the car and the complainant, one Dooley, who lived next door came to her assistance.  The applicant did not accept that his wife was leaving him and matters developed to the point where he tried to pull the child out of his wife's arms.  His wife resisted and the applicant punched her in the face.

Dooley and another man intervened and restrained the applicant and held him down until the applicant's wife and child had left in the car.  The two men released the applicant and punches were exchanged between Dooley and the applicant.

Dooley walked back to his caravan and observed the applicant looking into his utility, going into his caravan, returning to the utility and removing an axe from it.  The applicant walked towards Dooley shouting that he was going to kill him.  Dooley picked up a stool for protection.  When the applicant was 10 to 15 feet away from Dooley he threw the axe at him. 

The axe hit Dooley in the upper left side of the chest with the heel of the blade.  It caused him substantial pain with his legs buckling and he fell to the ground.  Dooley had little memory of what followed.  He was taken to hospital and was noted to have suffered abrasions and complained of pain in the left shoulder radiating into the left anterior chest wall associated with some tingling in the left hand.  He was admitted to hospital for pain relief and observation.  A chest X-ray was normal and an X-ray of the left shoulder showed no definite abnormality but the commencement of some soft tissue damage.

The photographs that were tendered do not show any discernible injury, apart from the abrasion on the shoulder.  The day after the incident the applicant approached the complainant at the hospital and attempted to have a conversation with him but Dooley did not wish to do so.

The applicant described this incident to the police as having gone to the hospital to see whether Dooley was all right because he was upset by what he had done.  The applicant himself suffered a scratch on the nose and a small abrasion to the corner of his mouth as a consequence of the altercation with his neighbours.

The applicant had suffered a serious closed head injury when thrown from his horse while he was jackerooing in September 1989.  Contemporaneous medical reports in respect of that injury were tendered on sentence.  He had been left with both physical and psychological deficits as a consequence of that injury, including some speech and co-ordination dysfunction and irritability.

His capacity for work was reduced to unskilled labour with maximum supervision.  He had received some $330,000 compensation in 1994 but by the time of these events it had virtually all been dissipated.  Alcohol has an adverse effect on the applicant of which he was well aware and he was apparently rendered anxious by any physical injury or confinement to himself.

The learned sentencing Judge recognised the applicant's early plea;  that he had no homicidal intent (he having been also charged on the indictment with attempted murder, the Crown accepted the plea to the lesser in discharge of the indictment); and the effect of the applicant's previous brain damage.

He rightly regarded the attack as unjustified and frightening and the use of the axe called for a custodial sentence.  By the time the matter came on for sentence the applicant had made a pledge with his parents, whose support he had, to abstain from alcohol which pledge he had kept.

He had accepted that his marriage had ended and that he would see his child on regular access.  He then worked part-time and did some community work. The applicant contends that the learned sentencing Judge gave insufficient weight to factors favourable to him in setting the terms of imprisonment, whilst recognising that a custodial sentence was called for because of the serious nature of the assault.

Because of the applicant's difficult personal circumstances arising from his mental deficits and matrimonial problems, together with the fortuitous outcome for the complainant, the learned sentencing Judge, in my view, ought to have given consideration to a shorter period of imprisonment coupled with the assistance of guidance in the form of probation.

He could also have taken a more favourable view of the search of the utility and caravan of something to throw but found everything else except the axe strapped down.  In other words that it was not a search for the axe itself.  There was an explanation before the Court that the axe was simply thrown in anger but the learned sentencing Judge, no doubt, in response to submissions by the prosecution did not regard this as a particularly convincing explanation.

Counsel for the applicant has referred the Court to a number of cases.  Sinden, in my view, is the only one which is of assistance, CA number 476 of 1996 - which would suggest that at trial the maximum that might have been imposed on this offender was about two years.

The case of Furness, CA number 15 of 1996, referred to by the respondent is of little assistance.  The facts being much worse than in this case.  In my view an appropriate sentence would have been one of six months together with a period of probation of two years, taking into account the fact that this man was 25 at the time, had no previous convictions, a good work history and the deficits to which I have referred, as well as his plea of guilty.

This necessitates consent by the applicant to undergo probation including, as I think would be necessary, such counselling as the probation officer thought appropriate.  If that was forthcoming then I would then allow the application and give leave to appeal, allow the appeal and order that the sentences imposed below be set aside and impose a sentence of imprisonment for six months with probation for two years.

PINCUS JA:  I agree.  The case is one which is not made easier by the fact that there were rather different versions before the sentencing judge.  No evidence was called and His Honour had to do the best he could with the versions given.  The version put forward on behalf of the applicant emphasises the lack of deliberation on his part.

The only other thing I wish to add is, that if one reads the record, the impression may be given that the injuries suffered by the complainant were more serious than the photographs suggest.  A careful look at the photographs would convey the impression that the complainant's injuries were relatively trifling.  As I have said, I agree with the reasons given by Justice White and the order Her Honour proposes.

SHEPHERDSON J:  The question for the Court is whether or not the learned sentencing Judge erred in the exercise of the sentencing discretion when he imposed a sentence of 15 months imprisonment.  Mr Shanahan, for the applicant, has, in his outline, conceded that because of the serious nature of the throwing of the axe that some actual custodial penalty was appropriate.

He then went on to submit that the range extends from a custodial term coupled with a probation order to 12 months imprisonment with an appropriate recommendation for parole to recognise the applicant's plea of guilty.

For myself, I am unable to see that a sentence of 15 months, compared to the upper limit suggested by Mr Shanahan of 12 months, is manifestly excessive.  As for the matter of the short term of imprisonment coupled with the probation order, the transcript shows that when the Prosecutor was making submissions to His Honour he submitted the range for offences of the sort before him might be "something like 12 months to two years".  The learned sentencing Judge was aware that there were no previous convictions and the Prosecutor went on later to point ou to His Honour that he had the option of a custodial term followed by some supervision.  The learned sentencing Judge, it appears, sentenced the applicant on the morning on which he had pleaded guilty to the charge of unlawful assault occasioning bodily harm whilst armed.

It is apparent from the comments that up until that morning the Crown was proceeding with a charge of attempted murder and His Honour accepted that in the past the applicant had tried to plead guilty to the charge then before him.  His Honour, in my view, correctly described the assault as having been committed with the use of a very dangerous weapon.

He went on to say, "The use of an axe is a very frightening thing and even though you did that in some anger and while affected by liquor it is a crime that must attract a sentence that sends you to gaol."  His Honour appreciated that the applicant at the time of sentence had had significant brain damage earlier in his life and that had had an impact of great significance on his life.

He said, "It certainly is a factor behind all that has happened but nonetheless the offence you committed is a very serious one and the Court would not be doing its duty to the public if you were not sent to gaol for that offence."  He  then went on to imprison for 15 months. 

I am unable to see that there has been any error demonstrated to have taken place when the learned sentencing Judge sentenced the applicant, nor has it been demonstrated to me that even if no error can be seen on the record then the sentence imposed must be manifestly high.  I would refuse the application.

PINCUS JA:  The order of the Court will be, as has been indicated, that is six months imprisonment followed by two years probation.  The terms of the probation order will follow the requirements of section 93.  It is necessary, as you are aware Mr Shanahan, for sections 95 and 96 to be followed so that before the order can be formally made the explanations of section 95 must be given and consent obtained.  What is the best way of handling that from your point of view,

Mr Shanahan?

MR SHANAHAN:  Well, I will undertake to give the explanations and canvas his consent if the matter was adjourned for a day.

PINCUS JA:  Yes.  Will you inform the Registrar that this has been done?

MR SHANAHAN:  Yes.

PINCUS JA:  And then order can be formally made.  It cannot be made now.

MR SHANAHAN:  No.

PINCUS JA:  Very well.  Well, I suppose the thing to do then is simply to adjourn the matter generally and wait to hear further from you.

MR SHANAHAN:  Yes, Your Honour.

PINCUS JA:  Have you any comment on that procedure, Mrs Clare?

MRS CLARE:  No, thank you.

PINCUS JA:  Yes, very well, that is what we will do then.  With that intimation adjourn the matter generally.